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Section Review

Aftermath of the Rudow decision

By John Ford

John Ford is director of the Elder Law Project at Neighborhood Legal Services in Lynn and the president of the board of directors of the Massachusetts Guardianship Association.

Recently there was a decision in an Essex County Probate Court guardianship where the counsel for the ward successfully blocked an award of attorney’s fees for a nursing home that had sought an extension of the medication plan for an elderly resident. Relying upon MassHealth (Medicaid) regulations developed in the wake of a Supreme Judicial Court decision, Rudow v. Commissioner of the Division of Medical Assistance,1 the nursing home filed a motion to be reimbursed for legal expenses from the ward’s anticipated monthly income. This request was denied by Judge John P. Cronin on the grounds that the guardian was not the moving party and the regulations promulgated by MassHealth for counsel fees did not apply to nursing homes. The ruling was not appealed, presumably because the expenditure of time and resources would far exceed the $750 maximum fee allowable in this situation. Yet the court’s apparent reliance upon the argument advanced by the ward’s counsel, that the guardianship related expenses should be absorbed by the nursing home as “a cost of doing business” is a troubling development with serious implications for indigent patients who cannot give informed consent to medical care, including the administration of anti-psychotic medication and invasive medical procedures.

Prior to the Rudow decision in March 1999 thousands of Massachusetts nursing home residents were in need of medical guardians since they lacked the capacity to give informed consent to medical treatment and had no health care proxy agents to authorize appropriate treatment. There were no resources available to indigent (read MassHealth eligible) residents so that only the most conscientious facility administrators met the requirements to secure the court appointment of a guardian in such circumstances. Guardianship proceedings entail expense, even uncontested cases, and the efforts by good advocates and facility administrators were not adequate to the task. Nor did the courts offer resources to cover the expenses incurred by guardians of indigent nursing home residents.

In Rudow, the SJC instructed MassHealth to develop a reasonable mechanism for reimbursing such costs since a medical guardian was a condition precedent to providing care for a resident who lacked the capacity to consent to such care. Following the Rudow decision, MassHealth promulgated regulations implementing that court order2 that provided such a mechanism – a guardian’s incurred costs were allowed by the Probate Court, in line with the limits set out in the regulation, and the expenses were recouped by diverting future income of the resident from payments to the nursing home (as part of the calculation of the so-called Paid Amount PPA) to payment of the guardian’s expenses. Such expenses are subject to limits set in the regulations and must be approved by the Probate Court.

Advocates hoped that the result would be that a guardian would be appointed for every nursing home resident who needed one. That has not happened. From the initial promulgation of the regulations, advocates complained that the limits placed on the reimbursement were so meager that an argument could be made that the regulations fundamentally failed to implement the Rudow decision. Today, many such residents continue to do without the protections afforded by a guardian. The Massachusetts Guardianship Association is committed to addressing the needs of those residents and to developing a genuine response to those needs. We seek and encourage the development of incentives to long-term care facilities to meet their duty to ensure that every resident is being cared for in accordance with the laws governing medical treatment.

Whatever the facts in the case reported, we should all agree that the nursing home resident’s needs must be addressed. In a case where a nursing home resident has a court appointed guardian, whether pursuant to Weedon, Rogers, Brophy or Rudow, there should be no doubt that any medical care must be authorized by that guardian. If a review, annual or otherwise, is required by law, then the guardian should take the initiative to seek that review. If the guardian requires assistance from the nursing home, any reasonable costs associated with the review ought to be approved by the Probate Court judge and should be recognized as appropriate to the Rudow reimbursement mechanism. Incentives, not obstacles, are called for as the guardian approaches his or her duty to the ward. Rarely if ever does a guardianship end with the allowance of the petition. Nobody should presume that there will not be subsequent reviews, hearings or even filings, such as the annual account.

Judge Cronin observes that the Rudow regulations appear to authorize reimbursement only for the initial petition for appointment of a guardian. Such an interpretation of the regulations, however, cannot be squared with the Rudow opinion since it is quite clear that a guardian may have to and, in some cases, must return to court to seek further authority or otherwise manage the affairs of the ward. There should not be an assumption that such a guardian must act pro bono since such a guardian has a duty to the ward, which includes securing sufficient professional assistance essential to protect the ward and the ward’s interests. It is interesting to note that on a case-by-case basis MassHealth has recognized and processed court-approved costs in years subsequent to the appointment of a Rudow guardian.

The Massachusetts Guardianship Association will in the future approach the MassHealth legal and policy staff to address the issue raised by the Probate Court judge and other issues raised by the regulations in its ongoing efforts to protect the rights of residents of the Massachusetts long-term care system.